Terms and Conditions
THE OUTDOOR SPACE LIMITED
TERMS AND CONDITIONS OF TRADE
These terms and conditions of trade supercede all prior agreements, representations, or warranties previously supplied by TOSL and all contrary terms and conditions of the Customer. The laws of New Zealand govern this Agreement. The parties agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand. If any provision of this agreement is or becomes invalid that provision shall be deleted and the agreement will be interpreted without reference to that provision.
An agreement to undertake work for the Customer is accepted when this acceptance is communicated to the Customer, either verbally or in writing. If acceptance has not been communicated to the Customer, acceptance shall be deemed to have been made upon TOSL commencing work for the Customer.
Once an agreement to undertake work has been accepted, no cancellation, addition, reduction, amendment or variation of any kind may be made without the written consent of TOSL.
- QUOTATIONS – VALIDITY
4.1. All quotations must be in writing
4.2. TOSL’s quotation shall be valid for a period of 30 days unless otherwise stated. Quotations are based on current material and procurement costs and variations to these costs shall be payable by the Customer. The quotation is subject to confirmation by TOSL at the time of acceptance.
4.3. The Customer acknowledges that they are solely responsible for the accuracy of the information on which any quote by TOSL is based and that if there are any changes to the specifications upon which any quote is based then any increase in price caused by this will be payable by the Customer.
4.4. Quotations are subject to correction by TOSL for omissions and typing errors. TOSL reserves the right to change specifications at any time in the interests of continued product improvement and development.
5.1. The Customer shall pay the total price on the invoice supplied by TOSL without deduction.
5.2. The total price on the invoice is inclusive of GST unless otherwise stated.
6.1. Title to any goods supplied by TOSL shall remain the sole and absolute property of TOSL until cleared payment of all moneys owing by the Customer has been received by TOSL.
6.2. If any goods supplied become constituents of other goods, then the rights and obligations on the part of TOSL and the Customer herein shall extend to those constituent goods.
6.3. The Customer acknowledges that in the event of non payment for any goods or services supplied, TOSL may repossess any goods it has supplied in their original form or as constituents of other goods.
6.4. TOSL shall have the right to retake possession of and resell any goods it has supplied and the Customer authorises TOSL or its agents to enter into any premises where the goods are situated or thought to be situated for this purpose. The Customer hereby indemnifies TOSL in respect of any claim, action, damage or cost incurred or threatened as a result of TOSL exercising the powers granted under this clause.
All risk for any goods supplied passes to the Customer when delivered and/or installed by TOSL.
8.1. TOSL may at its option as a prerequisite to undertaking any work require payment in advance, a guarantee of payment, a deposit or a letter of credit.
8.2. The price and all other money will be paid to TOSL within 7 days following the date of the invoice. If payment is not received by the due date, TOSL reserves the right to charge interest on any outstanding amount at 2.5% per month, calculated daily from the date of the invoice.
8.3. Cheques will not be credited until cleared.
8.4. Any money received by TOSL will be applied to the Customer’s accounts as TOSL sees fit. Accepting part payment is without prejudice to other remedies that may be available to TOSL.
8.5. The Customer is liable for all the costs and incidental expenses incurred by TOSL recovering any amount owed to TOSL by the Customer, including costs on a solicitor – client basis.
If the Customer breaches these Terms and Conditions of Trade or if any event occurs which TOSL reasonably believes may affect the ability of the Customer to comply with these Terms and Conditions of Trade including the payment of all moneys owing by the Customer to TOSL, all moneys become immediately due and payable. TOSL has the right to cancel the contract or any part thereof so far as it remains unperformed without prejudice to its rights against the Customer for any damages or consequential loss.
10 WARRANTY/LIMITATION OF LIABILITY - IMPORTANT
10.1 Consumer Guarantees Act 1993 (the Act) may apply to any goods or services supplied by TOSL if these goods or services are supplied for personal, domestic or household use. If the Act applies, all rights the Customer has under the Act apply in addition to the rights under this these Terms and Conditions of Trade. Where goods or services are supplied for personal, domestic or household use nothing in these Terms and Conditions of Trade will limit or exclude any rights under the Act. Where the Customer acquires or holds him or herself out as acquiring any goods or services for the purpose of a business, then the Customer agrees that the provisions of the Act will not apply to the provision of these goods or services.
10.2 The Customer agrees and acknowledges that TOSL’s liability will NOT EXCEED THE PURCHASE PRICE paid by the Customer for the goods or services for any property damage, personal injury, direct or consequential loss or damage incurred by the Customer or a third party whether due to defective goods and/or as a result of negligence or otherwise by TOSL or its servants or agents.
10.3 TOSL’s liability for any claim in respect of defective goods or supplied services is limited to claims made within 12 months of the date of installation.
10.4 Claims in respect of defective goods or supplied services must be notified within 7 days of the Customer becoming aware of a defect. The Customer shall have no claim with regard to goods or services that have been altered in any way by the Customer. No claim shall entitle the Customer to withhold payment of any sum due to TOSL under this or any other contract nor shall a claim give any right to set off any payment due to the Customer by TOSL.
11. OTHER CONTRACTORS
TOSL shall not be responsible or liable in any way for any damage caused to any goods or services supplied by TOSL by the actions of any other party, including any other contractor carrying out work on the same site as TOSL.
12. COPYRIGHT – INFORMATION OWNERSHIP
Copyright in all reports, correspondence, drawings, plans, sketches, computations, specifications and other technical information prepared or made by or for TOSL for any purpose in connection with this agreement is vested in TOSL and shall remain confidential between TOSL and the Customer and shall not be disclosed, loaned, copied, or otherwise used without the prior written consent of TOSL.
All general advice and information is provided by TOSL gratuitously but WITHOUT LIABILTIY.
14. FORCE MAJEURE
TOSL shall not be liable for delayed delivery or non-delivery of any goods or services occasioned by matters beyond TOSL’s control.
15. SECURITY INTERESTS
15.1. The Customer agrees they will do all acts necessary and provide TOSL on request all information TOSL requires to register a financing statement over any goods supplied or their proceeds at the request of TOSL. The Customer agrees to advise TOSL immediately in writing of any changes to that information. The Customer waives all rights to receive a copy of any verification statement of a financing statement. Both TOSL and the Customer agree to contract out of section 114(1) (a) and all the matters listed in section 107(2) of the Personal Property Securities Act 1999.
15.2. The Customer agrees that they will supply TOSL, within 2 business days of TOSL’s written request, with copies of all security interests registered over their personal property, and the Customer authorises TOSL as their agent to request information from any secured party relating to any security interest which is held in any personal property which is or has been in the Customer’s possession or control.
15.3. The Customer authorises TOSL to search the Personal Property Securities Register at any time for any information about the Customer or (if the Customer is a company) its parent or associated companies.
15.4. The Customer agrees that TOSL may require the Customer to pay all reasonable costs, including legal costs on a solicitor-client basis, associated with the discharge or amendment of any financing statement registered by TOSL, whether or not the change was initiated by the Customer.
16 DIRECTORS GUARANTEE
16.1 This Director’s Guarantee must be signed by the Director’s of the Customer if the Customer is a company and TOSL request the signing of this guarantee.
16.2 I/We, the undersigned in consideration of TOSL having agreed to supply the Customer with goods and services hereby jointly and severally guarantee to TOSL payment of all monies for all goods and services which have been supplied at the request of the Customer from time to time.